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The Supreme Court Justices don't want the government attaching GPS trackers to their cars.

The Supreme Court justices were decked out in their usual black robes today for a case involving the question of whether police need to get a warrant in order to attach a GPS tracker to someone’s car. But given their paranoia about possible technology-enabled government intrusions on privacy, it might not have been surprising if they had also been wearing tin foil hats.

The case at hand was U.S. vs Jones, involving Antoine Jones, a D.C. nightclub owner, who was busted for running a massive cocaine ring after police placed a GPS tracker on his Jeep Cherokee that tracked his movements for a month and showed him regularly driving to a stash house in Maryland. The police got a warrant to do this, but put a tracker on Mr. Jones’s Jeep the day after the warrant expired (and while it was in a parking lot in Maryland, rather than in D.C. where the warrant was issued) — D’oh. The government argued that the tracker only followed Jones’s movements on public streets where he could otherwise be readily observed, so said it didn’t violate his privacy (and thus argued that the government doesn’t ever need a warrant to track people this way). Jones’s side argued that tracking someone’s every move for 24 hours a day, 7 days a week for four weeks becomes an unreasonable search and a violation of privacy because of the pervasiveness of the tracking. Jones’s lawyer was also quite hung up on the idea that the government shouldn’t have the right to stick stuff on your property, and thus trespass against you.

Last year, the Supreme Court made a very narrow ruling in a case involving technology and privacy, deciding that a California SWAT officer was not entitled to privacy when it came to steamy text messages he sent on a work-owned (and thus government-owned) pager. They avoided making any larger pronouncements about whether employees generally have any kind of privacy when it comes to what they do on work-owned computers and smartphones. I assumed that the Justices might be similarly reserved in making big pronouncements about privacy and technology in this case, but I was wrong. The Justices came out swinging with big theoretical questions about the potential for vast government surveillance using smartphones and tracking technologies that are getting cheaper and cheaper; the Justices were ready for a big privacy rumble.

One of the most recent Supreme Court cases to deal with electronic surveillance of people’s movements was 1983′s U.S. vs Knotts, in which the Court said it was okay for the po-po to put a beeper in a can of chloroform, get someone to put it in Knotts’s car, and then use the beeper to track the car from a short distance. (This made it harder for a suspect to lose his tail by driving down an alley or making a sharp U-turn; the beeper beeped slower when the car was far away and faster when it was close.) Deputy Solicitor General Michael Dreeben tried to argue that the current case is basically the same thing, but Chief Justice John Roberts smacked that argument down, saying the beeper still involved a lot of work for police to tail a suspect, and even involved someone in a helicopter tracking the car. “That was 30 years ago. You get a lot more information from the device now,” said Roberts. “Now, law enforcement just sit back while a device is collecting tons of information.”

Justice Anthony Scalia, meanwhile, who is known as a privacy skeptic, focused on the “trespass” (pronounced “tress-pess” at One First Street) involved in the cops actually going up to a car and attaching a device to it. He argued it was okay, though “sneaky,” for cops to get someone to put a beeper in Knotts’s car surreptitiously, but that by doing this themselves in the Jones case, that they had violated the Fourth Amendment protection of his “house, papers and effects.” Sticking to that line of reasoning would likely not be very reassuring to those people who are worried about the applicability of this case to tracking people using the GPS device we all hold near and dear to our hearts, literally: our cell phones.

Justice Anthony Kennedy started pushing in that direction, asking Dreeben whether it would be okay for the Gov to put a tracking device on someone’s coat to follow their movements. Dreeben demured at that, saying that would track someone in a private residence, not just their public movements on a road, so that would be a violation of privacy.

Chief Justice Roberts then posed a hypothetical: “Would it be okay for the government to put GPS trackers on the cars of all of us without a warrant, and track our movements?” he asked, gesturing at his fellow justices. The government’s attorney replied that it would be, since their movements would only be tracked on public streets. They looked understandably put off by this line of reasoning. Note to self: Telling the Justices that it’s totally legal to stalk them may not be the best argument to make your case.

“If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day the public movement of every citizen of the United States,” said Justice Stephen Breyer. “If you win, you suddenly produce what sounds like 1984.”

Dreeben argued that the government isn’t doing this universally (and doesn’t plan to ). In response to a question from Justice Elena Kagan, he said the federal use of GPS trackers annually numbers in the low thousands (but said he didn’t know how often the devices are used by state law enforcement).

Justice Sonia Sotomayor was the most adamant in asking about the larger repercussions of how the government is interpreting what constitutes a “reasonable search” using tracking devices. “By your theory, you could track everyone using their cell phones. Your theory is that as long as you’re monitoring someone in public, it’s reasonable for you to use their possessions to track them,” she said.

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I am strongly supportive of Scalia’s penchant to ask Congress to define limits here- remember that it is the responsibility of all three branches to protect the constitution.

Also, it looks like the court is leaning strongly toward the outcome I was hoping for, which is good news.

Finally, Ms. Hill- thanks for looking at and reporting on how widely or narrowly the court may rule here. That was one of the questions I had, and I appreciate your reporting on that important legal angle.

The feeling in the courtroom was that the Justices did not want to go narrow on this one, but the defense attorney’s refusal to engage in discussion about location surveillance issues beyond a GPS tracker on a car means we got a limited preview of what may be in the opinion. Can’t wait to see who will be writing it. In the unlikely scenario that it’s Sotomayor, it will be a doozy.

If the police don’t need a warrant, using the logic that the automated tracker is doing nothing more than what a team of surveillance officers would perform, then it would be difficult to argue that it would be against the law for anyone to put a tracker on your car without your knowledge. Or, for that matter, for citizens to put trackers on police cars without their knowledge. Privacy is disappearing quickly. When each piece of clothing contains an RFID tag for inventory purposes, then that set of RFIDs becomes a fingerprint that can be used to track your movements. With police looking for the ability to tie into commercial video surveillance systems for realtime use, it’s not hard to imagine them also connecting to other real-time tracking systems. These efforts need to be slowed down and Congress does need to be clear about what should be allowed. Just because it’s technically feasible doesn’t mean that it’s the right thing to do in our society.